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Newsletter
April
2001
The
Ridder Decision: A Town Wetlands Protection Bylaw Must Comply
with the Wetland Protection Act's Agricultural Exemption
Carrie E. Dahlstrom, Esq.
Fasanella & Wood LLP
In December of 2000, Judge Gary A. Nickerson decided the
Town of Hanson Conservation Commission v. Ridder,
Plymouth Superior Court, Civil Action No. 00-445B case,
which involved the interaction between the Wetlands Protection
Act's ("WPA's") agricultural exemptions and a
Town's wetland protection bylaw.
In this case, the Town of Hanson Conservation Commission
(the "Commission") filed a Complaint against Jon
Ridder, the Defendant ("Ridder"). Ridder purchased
a large tract of cranberry bogs in Hanson, Massachusetts
in February, 2000, totaling 285 acres and comprised of cranberry
bogs, a reservoir, waterways, dikes, and surrounding upland.
The various bogs on the property were in need of "substantial
repair," and Ridder set out to make repairs to the
bogs and waterways. The most substantial aspect of the project
involved the creation of a tailwater recovery system, which
was designed to improve production, conserve water, and
improve water quality. This work required the following
activities: (1) dredging the existing reservoir; (2) excavating
a portion of one bog; and (3) the reconfiguration of pumps,
dikes, and flumes. Additional work was designed to clear
the roadway network on the site and construct a fence along
on the northeast perimeter of the property.
The Commission's agent met with Ridder to advise him that
the work along the access road would be in violation of
the Town of Hanson Wetland Protection Bylaw (the "Bylaw")
without proper permits were secured from the Commission.
At a second meeting, the Commission's agent apparently advised
Mr. Ridder that he would have to file with the Commission
for permission to work in the buffer zone. Ridder thereafter
submitted a schedule of proposed work to the Commission
claiming that the work was exempt from regulation under
the WPA. In response, the Commission informed the property
owner that the Town Bylaw was stricter than the WPA, and
that he needed to file a Notice of Intent with the Commission
prior to beginning any of the proposed work.
Ridder did not file an NOI and, instead, using heavy equipment,
began working on an access road. The Commission issued a
cease and desist order. However, the property owner apparently
continued with the proposed work. The Commission issued
a second cease and desist order and a Complaint was filed
in Plymouth Superior Court to stop the work.
The Court ruled in favor of Ridder, holding that "[t]he
work Ridder has undertaken is exempt under the Act."
The Court began its analysis in support of its holding by
examining the WPA exemption at M.G.L. c. 131, §40,
which states as follows:
[t]he provisions of this section shall not apply to .
. . maintenance of drainage and flooding systems of cranberry
bogs, to work performed for normal maintenance or improvement
of land in agricultural use . . .
Ridder's primary argument was straightforward: all work
proposed, including the roadway restoration and tailwater
recovery system work, is characterized as "work performed
for normal maintenance or improvement of land in agricultural
use," and therefore exempt from the WPA and the Commission's
NOI process.
The Commission's argument was more complex. The Commission
argued that the Bylaw was more stringent than the WPA as
the Bylaw did not recognize any exemption set forth by the
WPA, including the agricultural exemption set forth above.
Ridder countered this argument by alleging that the WPA
"preempts" the Bylaw. The Court sided with Ridder.
The Court first noted, "local by-laws cannot assume
authority reserved to the state" and further explained
that "the Act must be administered conjunctively with
local by-laws."
The WPA specifically enumerates an intent to "establish
a uniform definition to assist the agricultural community
in complying with the Wetlands Protection Act and reducing
the current uncertainty that exists." The Court used
this statutory language to decide that the WPA preempts
the Town's wetlands Bylaw with respect to the agricultural
exemption provision. In simplified form, the doctrine of
preemption means, in Massachusetts, that when the following
criteria are met, the State law overrides the local Bylaw
regulations: (1) there must be a clear legislative intent
to preclude local action; and (2) there must be either an
express legislative intent to preempt the subject matter
of the bylaw or circumstances showing that the purposes
of the legislation would be frustrated by the bylaw so as
to warrant an inference that the legislature intended to
preempt the field. The Court summed up the preemption doctrine
in one question: "does the local bylaw prevent the
achievement of a clearly identifiable legislated purpose?"
In applying the preemption test to the facts at hand, the
Court found that the WPA agricultural exemptions preempted
the Bylaw's treatment of agricultural exemptions. First,
the WPA clearly states a legislative purpose to exempt certain
agricultural activities from regulation, which would be
frustrated if Ridder complied with the Hanson Bylaw. Second,
the Attorney General had already prohibited two other towns
from enacting Wetlands Protection Bylaws similar to Hanson's,
which bypassed the WPA agricultural exemptions. The Court
found that all work proposed by Ridder was exempt from regulation
under the WPA's agricultural exemption.
However, the Court noted that the Commission still played
a very important role in monitoring Ridder's work:
[i]n order to qualify for the exemption, all must be done
so as to prevent erosion and siltation of adjacent water
bodies and wetlands. 310 CMR 10.04(b). Throughout 310
CMR 10.04, there are additional limitations on work done
in the name of agriculture. The local Commission and its
agent are the first line of enforcement under the Act
. . .
Even though Ridder was not required to file an NOI with
the Commission under the WPA and the Bylaw, the Court noted
that all work performed by Ridder must comply with the exemption
requirements.
Likewise, as a note of caution, the applicability of the
agricultural exemptions to a particular project does not
necessarily exempt the project from other regulatory overlays.
For example, regulatory requirements imposed by the Environmental
Protection Agency (the "EPA") under §§
401 and/or 404 of the Federal Clean Water Act may apply,
as well as regulatory requirements imposed by the Army Corps
of Engineers. It is critical to double-check all regulations
before proceeding with a proposed project.
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